Nuke Watchdog Urges New Look at Whistleblower Case

by Catherine Komp

Newly uncovered documents show discrepencies between what managers told two different federal agencies before and after firing an employee who raised safety concerns at Fitzpatrick nuclear plant.

Oct. 16, 2006 –
Activists opposed to nuclear power are calling on federal regulators to re-open an investigation into the case of a whistleblower whose employer fired him after he reported safety concerns at an Upstate New York reactor. They cite new evidence that plant managers gave false testimony to federal officials probing the issue.

Nearly three years after Entergy Corporation dismissed engineer Carl Patrickson from his position at its FitzPatrick nuclear power plant near Oswego, critics also say the company and federal regulators have failed to adequately address the "chilled work atmosphere" that resulted.

According to transcripts of interviews conducted by the Nuclear Regulatory Commission (NRC) and the Department of Labor, and reviewed by The NewStandard, three FitzPatrick managers gave conflicting testimony to the federal agencies about whether they knew Patrickson had reported safety problems before he was fired.

In submitting this evidence to the NRC last week, Citizens Awareness Network (CAN), a grassroots public-interest group with chapters in the Northeast, called for an immediate inquiry into discrepancies in the managersâ€™ testimony. CAN wants the NRC to suspend the three Entergy managers who apparently gave false testimony in the case, as well as reinstate Patricksonâ€™s job.

Last month, in a petition for emergency enforcement action, CAN called on the NRC to suspend Entergyâ€™s license to operate the FitzPatrick plant and to suspend review of the companyâ€™s 20-year license renewal.

Three FitzPatrick managers gave conflicting testimony to federal agencies about whether they knew Patrickson had reported safety problems before he was fired.

"Entergy has assured NRC that it creates a work environment in which workers do not have to fear for their jobs when they report safety problems," Deb Katz, executive director of CAN, said in a press statement. "Carl Patricksonâ€™s case and the discrepancies in these transcripts raise serious doubts about that."

Located with two other reactors on a 900-acre site near Lake Ontario, the Fitzpatrick plant has been operating since 1974. CAN has waged a long struggle to shut down the plant, citing a litany of safety and maintenance problems that compound the general threat posed by â€™70s-era nuclear generators. Nationwide, Entergy owns eleven nuclear facilities at nine different locations.

NRC documents show that each of three managers was aware of Patrickson's complaints to the NRC by November 5, 2003, at the very latest â€“ weeks before Entergy dismissed Patrickson. Yet all three testified before the Department of Labor the next year that they had not known of Patricksonâ€™s complaints at the time Entergy fired him on November 21, 2003.

CAN notes that all three managers â€“ Ted Sullivan, then vice president at FitzPatrick; Brian Oâ€™Grady, then plant manager; and Manager of Systems Engineering Steve Bono â€“ appear to have been promoted or favorably reassigned since Patricksonâ€™s firing.

Patrickson described in court testimony a long of period of worker intimidation for reporting possible safety hazards and violations.

"NRC must determine whether Sullivan, Oâ€™Grady and Bonoâ€™s superiors were aware of any misrepresentations of fact in their testimonies, and whether these promotions and reassignments were related to their performance in the Patrickson case," wrote CAN in a letter presented to the NRC last Thursday. "However, it would be enough to contribute to a chilled work atmosphere at FitzPatrick if Entergy employees perceive these managers to have been rewarded â€“ and never reprimanded," despite a federal finding that Entergy retaliated against Patrickson for reporting safety problems.

Patrickson, who worked at FitzPatrick for about 14 years, described in court testimony a long of period of worker intimidation for reporting possible safety hazards and violations at the plant. Patrickson says he first reported a problem to the NRC in 1997 â€“ a problem he says could have led to a "nuclear meltdown."

In April 2003, Patrickson filed a complaint with the Occupational Health and Safety Administration alleging Entergy "discriminated and retaliated" against him "for complaining to management and governmental agencies" about nuclear- and safety-related issues. Three months later, OSHA ruled that its investigation failed to find evidence supporting Patricksonâ€™s retaliation claim.

In November 2003, while Patrickson was appealing OSHAâ€™s decision to the Department of Laborâ€™s Office of Administrative Law Judges, Entergy fired him outright, citing performance problems.

A Department of Labor judge eventually ruled in favor of Patrickson, stating that Entergy had failed to prove that it would have fired him had he not reported safety problems to federal regulators.

Entergy has appealed that ruling; the case is currently pending. Bonnie Bostian, communications manger at the Fitzpatrick plant, told TNS that Entergy did not agree with the decision, because the company "does not dismiss employees for raising safety concerns."

Entergy also admitted that changes were made at the plant in response to some of Patricksonâ€™s safety concerns.

In a May 2005 letter to Entergy, the NRC stated that its own investigation did not find enough evidence to substantiate Patricksonâ€™s claims.

But Citizens Awareness Network charges the NRC with failing to conduct a thorough investigation of Patricksonâ€™s discrimination case in the first place. CAN says the new documents prove regulators had even more evidence at hand than did the Department of Labor when a judge serving the latter body ruled in favor of Patrickson.

The 1974 Energy Reorganization Act, one of many laws containing whistleblower protections, shields employees from discrimination or termination for reporting health, safety or environmental violations. For workers at nuclear plants, says nuclear-safety engineer and former whistleblower David Lochbaum, it is "imperative they have freedom to raise a flag when something doesnâ€™t look right."

"The plant workers are the first line of defense," Lochbaum said. "They are the people who are performing the tests, performing the inspections, or just walking down the hallway to spot a puddle from a leaking valve."

Despite the NRCâ€™s finding that Patricksonâ€™s claim of an unlawful dismissal was unsupported, the agency decided that in the wake of the Department of Laborâ€™s ruling in favor of Patrickson, there was the "potential for a chilling effect on the safety-conscious work environment." The agency further determined that employees "could be reluctant to identify or raise safety problems for fear of similar retaliation." The NRC requested that FitzPatrickâ€™s management advise the agency of actions it would take to prevent a chilled work environment.

Entergy, in a 5-page letter responding to NRCâ€™s request, said it had met with all employees in Patricksonâ€™s former department to explain that his dismissal was based on performance problems, rather than because he reported safety issues. Management reportedly reiterated at that meeting that the company encourages employees to bring up safety concerns through internal channels.

Entergyâ€™s letter went on to detail the companyâ€™s efforts to promote a "safety-conscious work environment," both prior to and after the Department of Laborâ€™s ruling in favor of Patrickson. These include a "Correction Action Program" to document and evaluate employee concerns; a confidential "Employee Concerns Program"; and literature and trainings for staff to promote a "safety-conscious work environment."

Entergy also admitted in the letter that changes were made at the plant in response to some of Patricksonâ€™s safety concerns.

The NRC decided, based on that letter and a subsequent conference call, that Entergy had been responsive to the Commissionâ€™s requests to show it was not creating a chilled work environment.

But CAN disagrees with the NRCâ€™s conclusion, stating the company did not "assess the actual effect the [Department of Labor] ruling may have had on employeesâ€™ perceptions of management and their willingness to report safety problems."

NRC spokesperson Scott Burnell would not respond to specific questions about Patricksonâ€™s case, nor why the NRC said it found no evidence to substantiate his claims of discrimination despite its own records documenting all three managersâ€™ awareness that their employee had reported problems at the plant.

"When there are indications that an employeeâ€™s ability to raise those concerns is impaired by management action, the NRC takes that very seriously," Burnell insisted. "That is one of the easiest ways to get the NRCâ€™s attention."

Burnell said that when the NRC sees such evidence, it "reflects very negatively on the plantâ€™s ability to meet NRC regulations." While these issues do not play a role in license renewals, Burnell added, there have been instances where the NRC has prevented a plant from returning to operation. He cited the Davis-Besse Nuclear Power Station in Ohio, which was shut down in 2002 "while extensive maintenance work and a great deal of attention to safety-conscious work environment [were] done at the plant."

Patrick Milano, NRC senior project manager, said the agency does not have a response yet to the new evidence CAN submitted. Before they can review the merits of CANâ€™s petition and the alleged false testimony, they must first determine if it meets agency criteria for an investigation, a process that takes about 30 days.